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High Court Hears Oral Arguments In Antitrust Class Certification Case

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on Nov. 5 heard oral arguments on "[w]hether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis" (Comcast Corporation, et al. v. Caroline Behrend, et al., No. 11-864, U.S. Sup.).

Miguel Estrada of Gibson, Dunn & Crutcher in Washington argued that the Third Circuit U.S. Court of Appeals erred in affirming the certification of a class of approximately 2 million nonbasic cable television customers in the Philadelphia market on claims that Comcast Corp. worked to establish a monopoly in the Philadelphia market and then increased prices once it had eliminated competition.

Holding that the assessment of the adequacy of expert evidence offered in support of class certification is a merits question that need not be decided in the class certification inquiry is not consistent with the rule that "questions, whether they be damages or liability, that are common to the class predominate over those that are individual as to class members," Estrada said.

"The damages model just does not fit the legal theory [of liability] that stays in the case" or "the record in this case," Estrada said in support of Comcast's argument that the Third Circuit erred by dismissing as premature Comcast's arguments that the customers' damages model did not "measure damages from the only theory of antitrust impact credited by the district court, i.e., that Comcast, by engaging in clustering, had deterred competition from overbuilders."

In response to Justice Elena Kagan's comments that Comcast waived its argument that the customer's expert report evidence was inadmissible, Estrada said Comcast objected to the weight and admissibility of the customers' expert report.

Probative Value

Barry Barnett of Susman Godfrey in Dallas, representing the customers, argued that Comcast argued "weight and probativeness as opposed to admissibility" and "never, ever cited Daubert[Daubert v. Merrell Dow Pharms. (509 U.S. 579, 589[1993])] [enhanced version available to lexis.com subscribers]." The class members contended that the Supreme Court should dismiss the writ as improvidently granted because Comcast raised the issue of admissibility for the first time in its merits brief after the Supreme Court granted review.

Justice Anthony M. Kennedy commented that because the judge can exclude evidence that he admitted "if it turns out that that doesn't meet the standard of reliability," conducting a Daubert analysis and then determining whether evidence is reliable "is just a magic words approach."

Barnett responded, "I submit that it is disrespectful to a district judge not to object on Daubert grounds and then complain that what he did was completely unusable in the court."

When asked by Justice Sonia Sotomayor whether Barnett agreed with a rule that before he certifies a class, a judge must "decide whether the methods being used are probative and relevant, sufficient to prove common . . . question of damages," Barnett said that he agreed if "there is a proper objection made such that the district court is put on notice that he or she needs to do the work."

Justices Samuel Anthony Alito Jr., Antonin Scalia and Kagan asked whether there is a difference between determining probative value and admissibility, and Chief Justice John G. Roberts Jr. commented that "one option for the Court . . . is to send it back for the court to determine whether or not the parties adequately preserved that . . . objection."

Legal Standards

Justice Kagan mentioned that it appeared that the parties did not disagree about any legal standards.

"[T]his is a case where it seems to me that except for the question of how good the expert report is, none of the parties have any adversarial difference as to the appropriate legal standard. And, you know, usually we decide cases based on disagreements about law, and here I can't find one," Justice Kagan said.

In his rebuttal, Estrada said that "a damages model can[not] stand up to examination on the theory that it is not linked to any theory of anticompetitive conduct." Comcast argued that the Third Circuit erred by dismissing as premature Comcast's arguments that the customers' damages model did not "measure damages from the only theory of antitrust impact credited by the district court, i.e., that Comcast, by engaging in clustering, had deterred competition from overbuilders."

Comcast is also represented by Mark A. Perry and Scott P. Martin of Gibson Dunn, Sheron Korpus of Kasowitz, Benson, Torres & Friedman in New York and Darryl J. May of Ballard Spahr in Philadelphia.

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